Can Workers’ Compensation Covid Causation Presumptions Have Preclusive Effect in Tort Cases?Workers’ Compensation Law Prof Blog

Can Workers’ Compensation Covid Causation Presumptions Have Preclusive Effect in Tort Cases?

by Michael Duff

One of the more interesting fact scenarios playing out in recent months centers on the scope of workers’ compensation exclusivity: an employee becomes exposed to coronavirus but does not herself become disabled by Covid-19. Instead, she carries the disease home and exposes certain others in her household to the virus, and one or more of those others develops Covid-19. The situation is analogous to the employee who becomes exposed to asbestos at work, does not herself develop the signature disease of mesothelioma, but someone else in the household does develop that disease. While I have no empirical data on the frequency of these kinds of Covid-19 cases, I am hearing and reading that they are being litigated.

The Larson’s treatise terms these “independent breach” claims (§101.03): a dependent spouse or parent brings an action against the employee’s employer suing not derivatively, in connection with the employer’s breach of a duty to the employee (a negligence breach clearly subsumed by exclusivity), but independently in connection with a wrong committed directly against the spouse or parent. This is not, for example, a meatpacking plant worker’s wrongful death suit filed by a surviving family member eligible for workers’ compensation benefits. That type of suit is preempted by workers’ compensation exclusivity (at least in the absence of intentional/willful/wanton/malicious conduct, where the action may theoretically be available depending on the state in question). In an independent breach claim the employee “bringing home” asbestos (or Covid 19) is simply a conduit for transmission of the disease agent. For this reason it should also not matter if a state bars workers’ compensation for infectious diseases since the claim does not arise under workers’ compensation. 
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